1415 Amendments to the rules relating to domestic relations matters; recommendation 54

Title 231--RULES OF
CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CHS. 1910 AND 1930]

Amendments to the Rules Relating to Domestic Relations Matters; Recommendation 54

[30 Pa.B. 4348]

   The Domestic Relations Procedural Rules Committee proposes the following amendments to Rules of Civil Procedure 1910.16-4, 1910.16-6, 1910.19, 1910.26 and 1930.5 and further proposes new Rule 1930.6. The Committee solicits comments and suggestions from all interested persons prior to submission of these proposed amendments to the Supreme Court of Pennsylvania.

   Written comments relating to the proposed rules must be received no later than Friday, October 20, 2000 and must be directed to:

Patricia A. Miles, Counsel
Domestic Relations Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
Fax [phone]
E-mail [e-mail]

   The notes and explanatory comments which appear in connection with the proposed amendments have been inserted by the Committee for the convenience of those using the rules. They will not constitute part of the rules and will not officially be adopted or promulgated by the Supreme Court.

DAVID RASNER, ESQ.,   
Chair

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1910.  ACTIONS FOR SUPPORT

Rule 1910.16-4.  Support Guidelines. Calculation of Support Obligation. Formula.

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   (c)  Substantial or Shared Physical Custody.

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   (2)  Without regard to which parent initiated the support action, [When] when the children spend equal time with both parents, [and] the Part II formula cannot be applied unless the obligor is the parent with the higher income. In no event shall the parent with lesser income be required to pay child support to the parent with the higher income, nor shall a support order be entered in favor of a party who has not filed for support. If application of the formula in Part II results in obligee receiving a larger share of the parties' combined income in cases in which the parties share custody equally, then the court shall adjust the support obligation so that the combined income is allocated equally between the two households.

   Example. Mother and Father have monthly net incomes of $3,000 and $2,000 respectively. Both have filed for support for their two children with whom they share time equally. Pursuant to the Basic Child Support Schedule at Rule 1910.16-3, the support amount for two children at their parents' combined net income level is $1,335 per month. Mother's share is 60% of that amount, or $801. Father's share is 40%, or $534. Application of subdivisions a. and b. of the Part II formula results in a 20% reduction in support when each parent spends 50% of the time with the children. Because the parties share custody equally and both have filed for support, Mother is the obligor for purposes of the Part II calculation because she has the higher income of the two parents. Using Mother as the obligor, her adjusted percentage share of the basic support amount is 40% (60% - 20% = 40%). Her adjusted share of the basic support amount is $534 (40% of $1.335). In these circumstances, Mother's support complaint should be dismissed and she would pay Father $534 per month. Because Father has less income than Mother, he cannot be an obligor in the Part II calculations nor can the amount of support Mother is obligated to pay to Father be offset by calculating Father's adjusted amount of support under Part II. If only Mother had filed for support against Father, her complaint would be dismissed when it was determined that she had the higher income of the two parties. It would be improper for Father to be considered the obligor for purposes of the Part II calculation even though only Mother had filed for support. A support order cannot be entered against the parent with the lesser income. However, a support order cannot be entered against Mother unless Father has also filed for support.

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   (d)  Divided or Split Physical Custody.

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   (2)  When calculating a combined child support and spousal or APL obligation, and one or more children reside with each party, the court shall, except as set forth in subdivision (3) below, offset the obligor's spousal and child support obligation with the obligee's child support obligation and award the net difference to the obligee as spousal and child support. In the example above, Husband's spousal and child support obligation to Wife and two children is $564. Wife's child support obligation for one child is $188. Subtracting $188 from $564 produces a net support amount of $376 payable to Wife as spousal and child support.

   (3)  When one or more of the children reside with each party and the obligee's net income is 10% or less of the parties' combined net monthly income, in calculating the spousal support or APL obligation, the court shall deduct from the obligor's income both the support owed for the child or children residing with the obligee, as well as the direct support the obligor provides to the child or children living with the obligor, calculated in accordance with the guidelines as if the child or children were not living with the obligor.

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   (f)  Allocation. Consequences.

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   (3)  Unallocated orders for child and spousal support, or child support and alimony pendente lite, shall terminate upon the death of the payee spouse or payee ex-spouse.

   [(3)] (4)  ***

Explanatory Comment--2000

   Subdivision (3) is new and the former subdivision (3) has been renumbered as subdivision (4). The new language is intended to insure alimony tax treatment of unallocated orders pursuant to § 71 of the Internal Revenue Code. A similar change has been made to the form order at Rule 1910.26(e). New Rule 1910.19(d) provides that all spousal support and alimony pendente lite orders terminate upon the death of the payee.

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Rule 1910.16-6.  Support Guidelines. Adjustments to the Basic Support Obligation.

   (a)  Child care expenses. Reasonable child care expenses paid by the custodial parent, if necessary to maintain employment or appropriate education in pursuit of income, are the responsibility of both parents. These expenses shall be allocated between the parties in proportion to their net incomes and obligor's share added to his or her basic support obligation. When the custodial parent is receiving a child care subsidy through the Department of Public Welfare, the expenses to be allocated between the parties shall be the full unsubsidized cost of the child care, not just the amount actually paid by the custodial parent.

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Official Note

   A child care subsidy provided by the Department of Public Welfare should not be used to reduce the child care expenses subject to allocation between the parties to the extent that obligor has the financial resources to contribute to the actual costs of child care. Nor is it appropriate to order the obligee to seek a child care subsidy in order to reduce the obligor's share of child care expenses if obligor has the financial ability to contribute to those expenses. However, if allocation of the unsubsidized amount would result in a support order that is overly burdensome to the obligor, deviation pursuant to Rule 1910.16-5 may be warranted. The trier of fact also has the discretion to determine whether or not to include in the order other adjustments under Rule 1910.16-6, such as a mortgage contribution, which are not mandatory. No adjustment to the basic support amount shall be permitted if such would cause the obligor's remaining net monthly income to fall below the Computed Minimum Allowance of $550.

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Rule 1910.19.  Support. Modification. Termination. Guidelines as Substantial Change in Circumstances.

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   (d)  All orders for spousal support and alimony pendente lite shall terminate upon the death of the payee spouse.

Rule 1910.26.  Form of Complaint. Order. Income and Expense Statement. Health Insurance Coverage Information Form. Form of Support Order. Form Petition for Modification.

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   (e)  The form of a support order shall be substantially as follows:

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For the support of: __________
__________
__________
__________
__________
__________

All orders for spousal support and alimony pendente lite, including unallocated orders for child and spousal support or child support and alimony pendente lite, shall terminate upon the death of the payee.

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CHAPTER 1930.  RULES RELATING TO DOMESTIC RELATIONS MATTERS GENERALLY

Rule 1930.5.  Discovery in Domestic Relations Matters.

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   (b)  Discovery shall be available without leave of court in accordance with R.C.P. 4001 et seq. in [complex support,] alimony, equitable distribution, counsel fee and expense [applications] and complex support proceedings.

Explanatory Comment--2000

   Subdivision (b) has been amended to clarify that the adjective ''complex'' applies only to a support proceeding.

Rule 1930.6.  Paternity Actions.

   (a)  Scope. This rule shall govern the procedure by which a putative father may initiate a civil action to establish paternity and seek genetic testing. Such an action shall not be permitted if an order already has been entered as to the paternity, custody or support of the child, or if a support or custody action is pending.

Explanatory Comment

   Where the paternity of a child born out-of-wedlock is disputed, 23 Pa. C.S. § 4343 provides that the court shall make the determination of paternity in a civil action without a jury. That statutory provision also states, ''A putative father may not be prohibited from initiating a civil action to establish paternity.'' Rule 1930.7 governs the procedures by which a putative father may initiate a civil action to establish paternity outside the context of a support or custody proceeding.

   (b)  Venue. An action may be brought only in the county in which the plaintiff or the child(ren) reside.

   (c)  Commencement of Action. An action shall be initiated by filing with the prothonotary a verified complaint to establish paternity and for genetic testing substantially in the form set forth in subdivision (1) below. The complaint shall have as its first page the Notice of Hearing and Order set forth in subdivision (2) below.

   (1)  The complaint filed in a civil action to establish paternity shall be substantially in the following form:

(Caption)

COMPLAINT TO ESTABLISH PATERNITY AND FOR GENETIC TESTING

   Plaintiff, ______ , requests genetic testing to establish paternity pursuant to 23 Pa.C.S. § 4343 and in support of that request states that:

   1.  Plaintiff is an adult individual who resides at
__________
__________

   2.  Defendant is an adult individual who resides at
__________
__________

   3.  Defendant is the natural mother and Plaintiff believes that he may be the natural father of the following child(ren):

   Child's Name                     Date of Birth
__________
__________

   4.  The above-named children reside at the following address with the following individuals:

	Person(s) Living	Relationship
Address	with Child	to Child

__________
__________

   5.  Defendant was/was not married at the time the child(ren) was/were conceived or born.

   6.  Defendant is/is not now married. If married, spouse's name: ______

   7.  There is/is not a custody, support or other action involving the paternity of the above-named child(ren) now pending in any jurisdiction. Identify any such actions by caption and docket number. ______

   8.  There has/has not been a determination by any court as to the paternity of the child(ren) in any prior support, custody, divorce or any other action. If so, identify the action by caption and docket number ______

   9.  Plaintiff agrees to pay all costs associated with genetic testing directly to the testing facility in accordance with the procedures established by that facility.

   Wherefore, Plaintiff requests that the court order Defendant to submit to genetic testing and to make the child(ren) available for genetic testing.

   I verify that the statements made in this complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.

_________________
Petitioner

   (2)  The Notice of Hearing and Order required by this rule shall be substantially in the following form:

(Caption)

NOTICE OF HEARING AND ORDER

   YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following papers, you must appear at the hearing scheduled below. If you fail to do so, the case may proceed against you and a final order may be entered against you granting the relief requested by the plaintiff.

   Plaintiff and Defendant are directed to appear on the ______ day of ______ , 20 __ at ______ .m. in courtroom _____ for a hearing on Plaintiff's request for genetic testing. If you fail to appear as ordered, the court may enter an order in your absence requiring you and your child(ren) to submit to genetic tests.

   YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.

   (name) __________

   (address) __________

   (telephone number) __________

Americans with Disabilities Act of 1990

   The Court of Common Pleas of ______ County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing.

   (d)  Service. Service of original process and proof of service in a civil action to establish paternity shall be in accordance with Rule 1930.4.

   (e)  Hearing and Order. At the hearing, the judge will determine whether or not the plaintiff is legally entitled to genetic testing and, if so, will issue an order directing the defendant and the child(ren) to submit to genetic testing, the cost of which shall be borne by the plaintiff.

[Pa.B. Doc. No. 00-1415. Filed for public inspection August 18, 2000, 9:00 a.m.]